Classification of Administrative
Action
Administrative Law
Issues
• What are the different categories into which administrative
action is classified?
• What are the distinctive features of each class of
administrative action, and how does one distinguish between
them?
• Why is it necessary to classify administrative action?
• What are the consequences that flow from the classification
of a decision as belonging to a particular category?
– What are the norms that govern each category of decision-making?
Example
• University Guidelines regarding the conduct of examinations.
– Instructions to Students, Invigilators and Examiners.
– How is such a policy framed?
• Applying the norms in the University Guidelines to a particular
case of violation of the rules.
– What’s the procedure followed here?
– How is it different from the procedure on framing the policy, and
– Why is it different?
• Other issues of implementation of the Policy:
– Management of examinations – allocation of responsibilities, funds,
classrooms, invigilators etc.
– How and why is the procedure followed here different?
Classification – Broad Principles
• Legislative Power is the power to “create rights, powers, privileges, or
immunities, and their correlatives, as well as status, not dependant upon
any previous rights, duties etc.”(or for the first time), that is, apparently,
the power of creating “antecedent legal capacities and liabilities.” (Green)
• Judicial power is the power to create some right or duty dependant upon a
previous right or duty, that is apparently, the power to create remedial
legal capacities and liabilities.
• Executive power – the residuum.
• Paton: “No test for distinguishing the three powers of the government is at
once intellectually satisfying and functionally useful.”
Consequences of Classification: Generally
• Principles of NJ:
– Legislative – no need to follow principles of NJ.
– Administrative – applies to a certain extent.
– Judicial – strict rules of procedure.
• Publication:
– Legislation – yes.
– Administrative – not necessarily.
– Judicial – yes, but in a different manner from legislation.
• Sub-delegation:
– Legislation – no.
– Administrative – yes.
– Judicial – no.
• Duty to give reasons:
– Legislation – no.
– Administrative – depends.
– Judicial – yes.
General Features
• Legislative action:
– Law-creation,
– Prospective,
– General,
– Public interest (Cynamide)
– Abstract effect on individual rights.
• Judicial action:
– Law-application,
– Retrospective,
– Specific,
– Direct effect on individual rights,
– Binding rules of procedure and doctrine of precedent – less scope for discretion.
• Executive action:
– Law-application, but can operate in the absence of law as well (Ram
Jawaya Kapur)
– General or specific,
– Direct effect on rights,
– Flexible procedure:
• Principles of NJ apply according to the kind of decision being made or
statutory provisions rather than according to strict formulae.
– Large amounts of discretion:
• Amount of discretion granted varies – can be subjective or objective.
• Can take into account factors of public policy outside the strict confines of
the law.
– Doesn’t decide a right though it may affect a right.
Legislative Functions – Distinctions
• Law-creation v law-application
– Legislation makes substantive law, whereas judicial function applies
substantive law to specific facts.
• Time (i.e. prospectivity)
– Justice Holmes in Prentis v. Atlantic Coast Line Co:
– “A judicial inquiry investigates, declares and enforces liabilities as they
stand on present or past facts and under laws supposed already to exist.
That is its purpose and end. Legislation on the other hand looks to the
future and changes existing conditions by making a new rule to be
applied there after to all or some part of those subject to its power.”
– The key factor in the Holmes analysis is time: a rule prescribes future
patterns of conduct; a decision determines liabilities upon the basis of
present or past facts. – Cynamide India case.
• Applicability (generality)
– Chief Justice Burger: “Rule making is normally directed toward
the formulation of requirements having a general application to
all members of a broadly identifiable class.”
– An adjudication, on the other hand, applies to specific
individuals or situations.
• Effect on Rights of Individuals (Abstract)
– “Rule-making affects the rights of individuals in the abstract and
must be applied in a further proceeding before the legal position
of any particular individual will be definitely affected;
adjudication operates concretely upon individuals in their
individual capacity.” – Schwartz.
Union of India v Cynamide India (1987)
• 2 Judges.
• Facts: Section 3(1) of the Essential Commodities Act enables the Central Government, if it is
of opinion 'that it is necessary or expedient so to do for maintaining or increasing supplies of
any essential commodity or for securing their equitable distribution and availability at fair
price', to 'provide for regulating or prohibiting by order, the production, supply and
distribution thereof and trade and commerce therein'. In particular, Section 3(2)(c) enables
the Central Government, to make an order providing for controlling the price at which any
essential commodity may be bought or sold.
• Exercising powers u/S 3(1), the 1979 Drugs (Prices Control) Order was notified by the Union
Govt. A few relevant provisions of the order:
• Paragraph 3 - enables the Government, with a view to regulating the equitable distribution of
any indigenously manufactured bulk drug specified in the first or the second schedule and
making it available at a fair price and after making such enquiry as it deems fit, to fix from
time to time by notification in the official gazette, the maximum price at which the bulk drug
shall be sold. While so fixing the price of a bulk drug, the Government may take into account
the average cost of production of such bulk drug manufactured by an efficient manufacturer
and allow a reasonable return on net worth.
• Paragraph 27 - enables any person aggrieved by any notification or order under
paragraphs 3 and other provisions to apply to the Government for a review of the
notification or order within fifteen days of the date of the publication of the
notification in the official Gazette, or, as the case may be, the receipt of the order by
him.
• Petitioners were manufacturers of drugs whose prices had been fixed under the 1979
order.
• Contentions:
• The prescription in paragraph 3 Clause 2 that the average cost of production of the
drug manufactured by an efficient manufacturer should be taken into account and that
a reasonable return on net worth should be allowed and the provision for a review of
the order determining the price, established that price-fixation under the Drugs (Prices
Control) Order 1979 was a quasi-judicial activity obliging the observance of the rules
of natural justice. The provision of enquiry further strengthened this presumption.
• The review for which provision made by paragraph 27 was certainly of a quasi-judicial
character and, therefore, it was necessary that the manufacturers should be informed
of the basis for the fixation of the price and furnished with details of the same in order
that they may truly and effectively avail themselves of the remedy of review. Further,
the prices could not be notified unless this procedure had been complied with.
• Issues:
• Whether the fixation of prices in the Drug Prices Control Order
was a quasi-judicial activity subject to the principles of natural
justice?
• What are norms that govern decision-making in legislative
action?
• Paragraphs: Paras 4-7, 26.
Opinion of the Court
• Wrt Price-Fixation: “price fixation is more in the nature of a legislative activity than any other.
It is true that, with the proliferation of delegated legislation, there is a tendency for the line
between legislation and administration to vanish into an illusion. Administrative, quasi-
judicial decisions tend to merge in legislative activity and, conversely, legislative activity
tends to fade into and present an appearance of an administrative or quasi-judicial activity.
Any attempt to draw a distinct line between legislative and administrative functions, it has
been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary
that the line must sometimes be drawn as different legal rights and consequences may
ensue. The distinction between the two has usually been expressed as 'one between the
general and the particular'. 'A legislative act is the creation and promulgation of a general
rule of conduct without reference to particular cases; an administrative act is the making and
issue of a specific direction or the application of a general rule to a particular case in
accordance with the requirements of policy'. … But, this is only a bread distinction, not
necessarily always true. Administration and administrative adjudication may also be of
general application and there may be legislation of particular application only.
• “Adjudication is determinative of the past and the present while legislation is indicative of
the future.
• The
– object of the rule,
– the reach of its application,
– the rights and obligations arising out of it,
– its intended effect on past, present and future events,
– its form,
– the manner of its promulgation are some factors which may help in drawing the line between
legislative and non-legislative acts.
• “A price fixation measure does not concern itself with the interests of an individual
manufacturer or producer. It is generally in relation to a particular commodity or class of
commodities or transactions. It is a direction of a general character, not directed against a
particular situation. It is intended to operate in the future. It is conceived in the interests of
the general consumer public. The right of the citizen to obtain essential articles at fair
prices and the duty of the State to so provide them are transformed into the power of the
State to fix prices and the obligation of the producer to charge no more than the price
fixed. Viewed from whatever angle, the angle of general application, the prospectively of
its effect, the public interest served, and the rights and obligations flowing therefrom,
there can be no question that price fixation is ordinarily a legislative activity. Price-fixation
may occasionally assume an administrative or quasi-judicial character when it relates to
acquisition or requisition of goods or property from individuals and it becomes necessary to
fix the price separately in relation to such individuals.
• On Legislative Action: “legislative action, plenary or subordinate, is not subject to rules
of natural justice. In the case of Parliamentary legislation, the proposition is self-
evident. In the case of subordinate legislation, it may happen that Parliament may itself
provide for a notice and for a hearing-there are several instances of the legislature
requiring the subordinate legislating authority to give public notice and a public hearing
before say, for example, levying a municipal rate-,in which case the substantial non-
observance of the statutorily prescribed mode of observing natural justice may have the
effect of invalidating the subordinate legislation. The right here given to rate payers or
others is in the nature of a concession which is not to detract from the character of the
activity as legislative and not quasi-judicial. But, where the legislature has not chosen to
provide for any notice or hearing, no one can insist upon it and it will not be permissible
to read natural justice into such legislative activity.
• Wrt ‘enquiries’ that might be conducted before the decision: The provision for 'such
enquiry as it thinks fit' is generally an enabling provision, intended to facilitate the
subordinate legislating body to obtain relevant information from all and whatever
source and not intended to vest any right in any one other than the subordinate-
legislating body. It is the sort of enquiry which the legislature itself may cause to be
made before legislating, an enquiry which will not confer any right on anyone. … The
legislative activity being a subordinate or delegated legislative activity, it must
necessarily comply with the statutory conditions if any, no more and no less, and no
implications of natural justice can be read into it unless it is a statutory condition.
• Grounds of review of legislative action: “the price fixed by
the Government may be questioned on the ground that the
considerations stipulated by the order as relevant were not
taken into account. It may also be questioned on any ground
on which a subordinate legislation may be questioned, such
as, being contrary to constitutional or other statutory
provisions. It may be questioned on the ground of a denial
of the right guaranteed by Article 14 if it is arbitrary, that is,
if either the guidelines prescribed for the determination are
arbitrary or if, even though the guidelines are not arbitrary,
the guidelines are worked in an arbitrary fashion.
• On the provision for ‘review’ u/Paragraph 7: “It is a curious amalgam of a hearing which
occasionally precedes a subordinate legislative activity such as the fixing of municipal rates etc.
that we mentioned earlier and a post-decision hearing after the making of an administrative or
quasi-judicial order… The true nature of the review provided by paragraph 27 in so far as it
relates to the fixation of maximum price of bulk drugs under paragraph 3 leader price and
prices of formulations under paragraphs 12 and 13 is hard to define. It is difficult to give it a
label and to fit it into a pigeon-hole, legislative, administrative or quasi-judicial. Nor is it
desirable to seek analogies and look to distant cousins for guidance. From the scheme of the
Control Order and the context and content of paragraph 27, the Review in so far as it concerns
the orders under paragraph 3, 12 and 13 appears to be in the nature of a legislative review of
legislation, or more precisely a review of subordinate legislation by a subordinate legislating
body at the instance of an aggrieved person.
• On the procedure to be adopted on such review: “The reviewing authority has the fullest
freedom and discretion to prescribe its own procedure and consider the matter brought
before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the
case of a review against an order under paragraph 3 and the respective other paragraphs in the
case of other orders. But whatever procedure is adopted, it must be a procedure tuned to the
situation.
• “From the legislative nature of the activity of the Government, it is clear that the Government
is under no obligation to make any disclosure of any information received and considered by it
in making the order but in order to render effective the right to seek a review given to an
aggrieved person we think that the Government, if so requested by the aggrieved
manufacturer is under an obligation to disclose any relevant information which may
reasonably be disclosed
Class Exercise
• You are an administrator who has been given the responsibility for
management of the public health services in a city of 1 million
people. In this context, draft a framework policy to deal with the
general issues that will be faced when discharging such a duty. The
policy must, inter alia, deal with:
– The setting of general norms for the governance of public hospitals and
the conduct of employees.
– Evolving a dispute resolution mechanism in case of taking disciplinary
action against a particular hospital or employee for violation of the norms.
– The allocation of various executive powers, such as those dealing with
sudden situations of the outbreak of disease (such as an epidemic), and
the process for exercising of such powers.
– The procedure for changing of this policy itself.
S K Bhathija v Collector (1989)
• 2 Judges.
• Facts: the Government of Maharashtra issued a draft notification under Section 3(3) of the
Bombay Provincial Municipal Corporation Act, 1949 (the "Act"). The draft notification proposed
the formation of what is termed as "Kalyan Corporation" (the "Corporation"). It suggested the
merging of Municipal areas of Kalyan, Ambarnath, Dombivali and Ulhasnagar. Several
objections were filed against the draft notification. A writ petition was filed by the All India
Sindhi Panchayat Federation, interested in having a separate identity for Ulhasnagar. The WP
was disposed off with the assurance of the Govt that they would afford a personal hearing to
the Federation. The others who have filed similar representations were not heard. But their
objections or representations were duly considered. Thereupon, the Government decided to
exclude Ulhasnagar from the proposed Corporation. Accordingly, a notification under Section
3(2) of the Act was issued. The Corporation was thus constituted without Ulhasnagar. That was
the only alteration made in the proposal earlier notified.
• Issue: Whether the notification could be struck down on the grounds of non-hearing of the
Petitioners?
Opinion of the Court
• Classification of the Decision: “The power of the State Government to
make a declaration under Section 3 of the Act is legislative in
character because the application of the rest of provisions of the Act
to the geographical area which is declared as a town area is
dependent upon such declaration. Section 3 of the Act is in the
nature of a conditional legislation.
• “The Government in the exercise of its powers under Section 3 is not
subject to the rules of natural justice any more than is legislature
itself. The rules of natural justice are not applicable to legislative
action plenary or subordinate. The procedural requirement of hearing
is not implied in the exercise of legislative powers unless hearing was
expressly prescribed.
• “No judicial duty is laid on the Government in discharge of the
statutory duties. The only question to be examined is whether
the statutory provisions have been complied with. If they are
complied with, then, the Court could say no more. In the
present case the Government did publish the proposal by a
draft notification and also considered the representations
received. It was only thereafter, a decision was taken to
exclude Ulhasnagar for the time being. That decision became
final when it was notified under Section 3(2). The Court cannot
sit in judgment over such decision. It cannot lay down norms
for the exercise of that power. It cannot substitute even ‘its
jester will for theirs.’”
State of TN v K Sabanayagam (1997)
• Facts: The Housing Board is a statutory body established under the Tamil Nadu
State Housing Board Act, 1961. The Payment of Bonus Act, 1965 requires the
payment of certain minimum levels of bonus to employees in specified
undertakings. Section 36 of the Act allowed the Govt to exempt establishments
from application of the provisions of the Act under certain circumstances. Orders
were passed by the Govt exempting the Housing Board from the provisions of the
Act. The employees challenged the orders on the ground that they were not given
the opportunity to be heard.
• “36. Power of exemption – If the appropriate Government, having regard to the
financial position and other relevant circumstances of any establishment or class
of establishments, is of opinion that it will not be in public interest to apply all or
any of the provisions of this Act thereto, it may, by notification in the official
Gazette exempt for such period as may be specified therein and subject to such
conditions as it may think fit to impose, such establishment or class of
establishments from all or any of the provisions of this Act.”
• Issue: Whether the exemption orders issued
by the State of Tamil Nadu from time to time
during the relevant years as per Section 36 of
the Act are null and void as no hearing was
given by the State of Tamil Nadu to the
employees likely to be affected by such
exercise of power of exemption before issuing
such orders.
• Classification: “By Section 36 the appropriate Government is invested with power to
exempt an establishment or a class of establishment from the operation of the Act,
provided the Government is of the opinion that having regard to the financial
position and other relevant circumstances of the establishment, it would not be in
the public interest to apply all or any of the provisions of the Act. Condition for
exercise of that power is that the Government holds the opinion that it is not in the
public interest to apply all or any of the provisions of the Act to an establishment or
class of establishment, and that opinion is founded on a consideration of the
financial position and other relevant circumstances… Section 36 amounts to
conditional legislation, and is not void, whether in a given case, power has been
properly exercised by the appropriate Government would have to be considered
when that occasion arises.”
• “when the legislation is complete in itself and the legislature has itself made the law
and the only function left to the delegate is to apply the law to an area or to
determine the time and manner of carrying it into effect, it is conditional legislation.
• Categorised Conditional Legislation into three categories:
• when the Legislature has completed its task of enacting a Statute, the
entire superstructure of the legislation is ready but its further applicability
to a given area is left to the subjective satisfaction of the delegate who
being satisfied about the conditions indicating the ripe time for applying
the machinery of the said Act to a given area exercises that power as a
delegate of the parent legislative body.
• wherein the delegate has to decide whether and under what circumstances
a completed Act of the parent legislation which has already come into
force is to be partially withdrawn from operation in a given area or in
given cases so as not to be applicable to a given class of persons who are
otherwise admittedly governed by the Act. When:
– Subjective satisfaction
– Uniform application
• wherein the exercise of conditional legislation would depend upon
satisfaction of the delegate on objective facts placed by one class of
persons seeking benefit of such an exercise with a view to deprive
the rival class of persons who otherwise might have already got
statutory benefits under the Act and who are likely to lose the
existing benefits because of exercise of such a power by the delegate.
– “In such type of cases the satisfaction of the delegate has necessarily to be
based on objective consideration of the relevant data for and against the
exercise of such power. May be such an exercise may not amount to any
judicial or quasi-judicial function. Still it has to be treated to be one which
requires objective consideration of relevant factual data pressed in service by
one side and which could be tried to be rebutted by the other side who would
be adversely affected if such exercise of power undertaken by the delegate”
• “When the Parliament in its wisdom has enacted such a beneficial piece of social
legislation which already guarantees minimum statutory bonus to employees governed
by it, if their employers are to be allowed to earn exemption from the sweep of such a
beneficial legislation which would ipso facto adversely affect entire class of their
employees, the conditions for exercise of such power of exemption have to be strictly
and objectively fulfilled by the repository of such a drastic power.
• “implicit in the section is the direction to the appropriate Government by the
Legislature that it should form its opinion on objective facts furnished not only by the
establishment or a class of establishments claiming such exemption but also by the
employees who are likely to be affected by the exercise of such power and who should
necessarily get an opportunity to submit their material in rebuttal. If this requirement
is not read in the Section the exercise of power of exemption qua the establishment or a
class of establishments which will have a direct pernicious adverse effect on the
employees who would otherwise earn statutory benefit of the provisions of the Act
would always remain a truncated, inchoate, half-baked and a stillborn exercise of power
and only on remand by competent court the exercise would become an informed one.
• “It is also necessary to keep in view that in such category of cases the delegate
exercising power of conditional legislation does not lay down a uniform course
of conduct to be followed by the entire class of persons covered by the sweep
of such an exercise but lay down a favourable course of conduct for a smaller
class of persons at the cost of rival large category of persons covered by the
very same exercise of power. To that extent there is a mini lis between these two
rival categories of persons likely to be affected by such an exercise by the
delegate.
• “In the case before us the legislation has prescribed objective standards and has
permitted the delegate to grant exemption and to withdraw the benefit of the
statute which is being enjoyed by the persons and in our opinion, in such a
situation, principles of fair play or consultation or natural justice cannot be
totally excluded.
• But this does not amount to a right to personal hearing, only an opportunity to
put forward rebuttal evidence.
Recapitulation
• Legislative Activity:
– Features and differences from other decisions.
– Procedural constraints.
– Differences in impact.
• Major reasons for distinctions:
– Impossibility of applying strict standards due to
generality.
– Public interest.
Judicial and Quasi-Judicial Functions
• Donoughmore Committee report (1932) on the distinction b/w judicial and
quasi-judicial powers:
• Distinguishing b/w judicial and quasi-judicial functions:
• “Both involve
– a dispute between parties,
– the presentation by the parties of their case, and
– the ascertainment of the facts underlying the dispute by means of evidence adduced
by the parties themselves.
– But a judicial decision is one which must be based on the application of the law of the
land to the facts so ascertained; whereas in the nature of things that can never be the
basis of a quasi-judicial decision. For a quasi-judicial decision involves considerations
of public policy, and in the last resort the decision is not a decision as to the
respective legal rights and obligations of the parties, but a decision as to what it is in
the public interest to do.”
• Quasi judicial largely more flexible on procedure, rules of evidence.
Nevertheless a duty to act judicially.
• Quasi-judicial authority not bound by precedent.
• Judicial authority cannot be a party to the dispute, but not so for quasi-
judicial authorities.
Distinction b/w Administrative and Quasi-
Judicial Functions
• Kind of discretion exercised
– Subjective v Objective.
• Leads to differences in procedure:
– Objective exercise of discretion requires enquiry,
determination of facts.
– Subjective satisfaction – fewer procedural
constraints.
Saraswati Devi v State of UP (1980)
• 5 Judges. Unanimous.
• Facts: A notification was published by the State Government providing that
certain routes in the State would be run and operated by the State transport
undertaking to the complete exclusion of other persons. These notifications
were published in accordance with requirements of Sections 68C and 68D of the
Motor Vehicles Act. The Petitioners were bus operators who were running
private buses on the routes mentioned in the notification. Their main objection
was that the order did not deal at all with objections of a personal nature which
had been filed by the appellants and which, inter alia, indicated that the scheme
would operate to the great disadvantage of the appellants all of whom were
plying buses on the disputed route and had invested huge sums of money for
that purpose. A second objection was that the State Government refused to
summon witnesses and to enforce the production of documents at the request
of the appellants.
Relevant Provisions
• Section 68 C. Where any State transport undertaking is of opinion that for the purpose of providing an efficient,
adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest
that road transport services in general or any particular class of such service in relation to any area or route or
portion thereof should be run and operated by the State transport undertaking, whether to the exclusion,
complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme
giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be
covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme
to be published in the Official Gazette and also in such other manner as the State Government may direct.
• 68 D. (1) On the publication of any scheme in the Official Gazette and in not less than one newspaper in
regional language circulating in the area or route which is proposed to be covered by such scheme -
• (i) any person already providing transport facilities by any means along or near the area or route proposed to
be covered by the scheme;
• …, may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the
State Government.
• (2) The State Government may, after considering the objections and after giving an opportunity to the objector
or his representatives and the representatives of the State transport undertaking to be heard in the matter, if
they so desire, approve or modify the scheme.
• (3) The scheme as approved or modified under Sub-section (2) shall then be published in the Official Gazette by
the State Government and the same shall thereupon become final …”
• On the nature of Section 68C, D: “The citizen may object to the
schema on public grounds or on personal grounds. He may oppose
the scheme on the ground that it is not in the interest of the public
or on the ground that the route which he is exploiting should be
excluded from the scheme for various reasons. There is, therefore,
a proposal and an opposition and the third party, the State
Government is to decide that lis and prima facie it must do so
judicially. The position is put beyond any doubt by the provisions
in the Act and the Rules which expressly require that the State
Government must decide the dispute according to the procedure
prescribed by the Act and the Rules framed thereunder, viz., after
considering the objections and after hearing both the parties.”
• “We may in passing refer to what are called objections of a
"personal" nature. These may be of two types: (1) those
challenging the scheme on the ground; that it harms an
existing operator and (2) those which indicate the details of
the services afforded by an existing operator for the purpose
of showing that the service envisaged by the scheme would in
comparison not be efficient, adequate, etc. Objections of the
second type, as we have just above concluded, would be
admissible for the reasons stated. Those of the first type,
however, would be wholly irrelevant to the determination of
the validity of the scheme in view of the postulates of Section
68C and would, therefore, be inadmissible.
Indian National Congress v Institute of Social
Welfare and Ors (2002)
• 2 Judges.
• Facts: The Supreme Court had held in 1988 that calling of a
‘bundh’ as opposed to a hartal was unconstitutional
because it involved elements of violence and coercion.
However, parties continued to call bundhs, and the
Respondents had filed WPs in the High Court of Kerala for
issuance of directions to the Election Commission to de-
register political parties under Section 29-A of the
Representation of People’s Act, 1951 (RPA) in case they act
against the Constitution. The EC had not been given an
express power to de-register a political party under the RPA.
• “29A. Registration with the Election Commission of association and bodies as political
parties--
• (1) Any association or body of individual citizens of India calling itself a political party and
intending to avail itself of provisions of this Part shall make an application to the Election
Commission for its registration as a political party for the purposes of this Act.
• … (5) The application under Sub-section (1) shall be accompanied by a copy of the
memorandum or rules and regulations of the association or body, by whatever name called,
and such memorandum or rules and regulations shall contain a specific provision that the
association or body shall bear true faith and allegiance to the Constitution of India as by
law established, and to the principles of socialism secularism and democracy, and would
uphold the sovereignty, unity and integrity of India.
• (6) The Commission may call for such other particulars as it may deem fit from the
association or body.
• (7) After considering all the particulars as aforesaid in its possession and any other
necessary and relevant factors and after giving the representatives of the association or
body reasonable opportunity of being heard, the Commission shall decide either to register
the association or body as a political party for the purposes of this Part, or not so to register
it; and the Commission shall communicate its decision to the association or body:
• Proved that no association or body shall be registered as a political party under this sub-
section unless the memorandum or rules and regulations of such association or body
confirm to the provisions of Sub- section (5).
• (8) The decision of the Commission shall be final;…”
• Section 21 of the General Clauses Act:
• “21. Power to issue, to include power to add to amend, vary or rescind,
notification, orders, rules or bye-laws. Where by any central Act or
regulation, a power to issue notifications, orders, rules or bye-laws is
conferred then that power includes a power exercisable in the like manner
and subject to the like sanction, and conditions (if any), to add to, amend,
vary or rescind any notifications, orders, rules or bye-laws so issued.”
• “the presence of a lis or contest between the contending parties before a
statutory authority, in the absence of any other attributes of a quasi-judicial
authority is sufficient to hold that such a statutory authority is quasi judicial
authority. However, in the absence of a lis before a statutory authority, the
authority would be quasi-judicial authority if it is required to act judicially.
• What distinguishes an administrative act from quasi-judicial act is, in the
case of quasi-judicial functions under the relevant law the statutory
authority is required to act judicially. In other words, where law requires
that in authority before arriving at decision must make an enquiry, such a
requirement of law makes the authority a quasi- judicial authority.
• “that another test which distinguishes administrative function from quasi-
judicial function is, the authority who acts quasi-judicially is required to act
according to the rules, whereas the authority which acts administratively is
dictated by the policy and expediency. (?)
• “In some case, an administrative authority may determine question of
fact before arriving at a decision which may affect the right of an
appellant but such a decision would not be quasi-judicial etc. It is
different thing that in some cases fair-play may demand affording of an
opportunity to the claimant whose right is going to be affected by the act
of the administrative authority, still such administrative authority would
not be quasi-judicial authority.
• Distilling the above tests:
– Find out if there is a lis,
– If no lis, find out if the authority is required to act judicially and if it affects the
rights of persons, and
– Whether the authority is required to act in accordance with rules, or according to
policy/expediency. (?)
• “In view of the requirement of law that the Commission is to give
decision only after making an enquiry, wherein an opportunity of
hearing is to be given to the representatives of the political party, we
are of the view that the Election Commission under Section 29A is
required to act judicially and in that view of the matter the act of the
Commission is quasi-judicial.
• “De-registration of a political party is a serious matter as it involves
divesting of the party of a statutory status of a registered political
party. We are, therefore, of the view that unless there is express
power of review conferred upon the Election Commission, the
Commission has no power to entertain or enquire into the complaint
for de-registering a political party for having violated the
Constitutional provisions.
• “On perusal of Section 21 of the General Clauses Act, we find that the
expression 'order' employed in Section 21 shows that such an order
must be in the nature of notification, rules and bye-laws etc. The
order which can be modified or rescinded on the application of
Section 21 has to be either executive or legislative in nature. But the
order which the Commission is required to pass under Section 29A is
neither a legislative nor an executive order but is a quasi-judicial
order.
• Therefore, since the EC acts quasi-judicially, and since there is no
express power for review of its recognition of a political party, it has
no power to review the order registering a political party for having
violated the provisions of the Constitution.
Further Developments
• From State of Bombay v K Advani (1950) and Radheshyam v MP (1959),
where clear lines were drawn b/w the requirements of quasi-judicial and
administrative acts, to cases such as State of Orissa v Binapani De (1967),
noted that the “duty to act judicially would, therefore, arise from the very
nature of the function intended to be performed: it need not be shown to
be superadded. If there is a power to decide and determine to the
prejudice of a person, duty to act judicially is implicit in the exercise of such
power.”
• What the situation demands.
• Effect on ‘rights’.
• Examples of administrative acts:
– Granting a licence.
– Order of preventive detention.
– Construction of a road by acquiring one piece of property rather than another.
– Allocation of public funds to various developmental activities in accordance
with stated objectives (to the extent that such developmental activities are
not in the nature of rights).
– Expulsion of a non-citizen.
• Quasi-judicial:
– Disciplinary proceedings against students.
– Dismissal of an employee.
– Determination of citizenship.
Blending the Distinction Further - AK
Kraipak v Union of India (1969)
• 5 Judges. Unanimous.
• Facts: A selection board was formed for selecting officers to the Indian Forest Service
in the senior scale as well as in the junior scale from those serving in the forest
department of the State of Jammu and Kashmir. The Board proceeded to prepare a list
of officers in order of preference. Naqishbund, the Acting Chief Conservator of Forests,
was a part of the selection board. He also happened to be a part of the people being
selected, and his name was placed on the top of those selected. He claimed to not
participate in the deliberations when his name came up for consideration, but was a
part of the deliberations when other names were considered.
• The Petitioners claimed that the power of appointment was quasi-judicial and hence
attracted the principles of natural justice (PNJ), whereas the Respondents claimed that
the decision was purely administrative and hence cannot be scrutinized on grounds of
violation of PNJ.
• “The dividing line between an administrative power and a quasi-judicial power is quite thin and is being
gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial
power one has to look to the nature of the power conferred, the person or persons on whom it is
conferred, the framework of the law conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power is expected to be exercised. Under our
Constitution the rule of law pervades over the entire field of administration. Every organ of the State
under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is
inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of
rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of
discharging their functions in a fair and just manner. The requirement of acting judicially in essence is
nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures
which are considered inherent in the exercise of a judicial power are merely those which facilitate if
not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been
undergoing a radical change. What was considered as an administrative power some years back is now
being considered as a quasi-judicial power.
• It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of
the present case we shall assume that the power exercised by the selection board was an
administrative power and test the validity of the impugned selections on that basis.
• “under the circumstances it was improper to have included Naquishbund as a member of the
selection board. He was one of the persons to be considered for selection. It is against all
canons of justice to make a man judge in his own cause. … The real question is not whether he
was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see
is whether there is reasonable ground for believing that he was likely to have been biased.
• “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only in areas not covered by any law validly
made. In other words they do not supplant the law of the land but supplement it. … If the
purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why
those rules should be made inapplicable to administrative enquiries. Often times it is not easy
to draw the line that demarcates administrative enquiries from quasi-judicial enquiries…
Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative enquiry may have more far reaching effect
than a decision in a quasi-judicial enquiry. What particular rule of natural justice should apply
to a given case must depend to a great extent on the facts and circumstances of that case, the
framework of the law under which the enquiry is held and the Constitution of the Tribunal or
body of persons appointed for that purpose. Whenever a complaint is made before a court
that some principle of natural justice had been contravened the court has to decide whether
the observance of that rule was necessary for a just decision on the facts of that case.
• An unjust decision in an administrative enquiry may have more far reaching effect than a
decision in a quasi-judicial enquiry.
Recapitulation
